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Getchell v. Lodge2/28/2003
ne that Trooper Leichliter should not be able to offer expert opinions because Lodge listed him as a fact witness rather than an expert witness in her witness list. Getchell asserted that because Trooper Leichliter was a fact witness, his testimony should be excluded as improper lay opinion evidence under Alaska Rule of Evidence 701 because, contrary to Rule 701's requirements, he did not see the accident. Alternatively, Getchell argued that if the court considered Trooper Leichliter an expert, his testimony should be barred because it did not satisfy Rule 702's helpfulness requirement. Although Lodge listed Trooper Leichliter as a fact witness, rather than an expert, the trial court apparently considered his testimony to be expert testimony. Judge Brown permitted Trooper Leichliter to testify regarding causation based upon his investigation of the accident.
In his testimony, Trooper Leichliter focused on the accident report that he prepared when he arrived at the accident scene. He testified that the moose was the only contributing factor and that no human factors contributed to the accident. Trooper Leichliter gave the opinion that drivers generally react to the sight of a moose in the road in front of them by braking, which could lead to skidding and loss of control in icy road conditions. He testified that he found no evidence indicating any improper conduct by Lodge. Lodge's defense attorney used this testimony in his closing statement as opinion evidence that Lodge was not negligent in responding as she did to the sighting of the moose. Trooper Leichliter's testimony incorporated both his observations as a percipient witness investigating the scene and his conclusions about causation based on over twenty-two years as a state trooper investigating accidents. Thus, we find that the label " expert" or "fact" witness lacks significance in this situation because Trooper Leichliter provided hybrid testimony.
We discussed the concept of hybrid witnesses in Miller v. Phillips. In Miller, parents of an injured newborn sued their midwife for negligence. The jury found for the midwife. On appeal, the parents argued that the trial court erred in allowing the midwife's supervising physician to testify as an expert because the midwife called him as a fact witness. The trial court allowed the doctor to testify as a hybrid witness; he could not testify "in general terms about the appropriate standard of care," but he could testify to "his expert observations his own opinions as to what he observed," as well as his "expert opinions based on his review of hospital records." We held that the physician could express expert opinions formed as a supervisory participant, reasoning that " hen physicians are called to testify about matters pertaining to the treatment of their patients, the distinction between an expert witness and a fact witness inevitably becomes blurred." Like the treating physician in Miller, Trooper Leichliter, the investigating officer, was "intimately involved in the underlying facts giving rise to the litigation and . . . would reasonably be expected to form an opinion through that involvement." Thus, despite Lodge's choice to list Trooper Leichliter as a fact witness, it was not error to permit him to base his opinions on his expertise. Moreover, Getchell was fully aware of the content of Trooper Leichliter's proposed testimony. She was able to depose Trooper Leichliter and thus suffered no prejudice from Lodge's decision to list him as a fact witness.
2. The trial court did not err in admitting Trooper Leichliter's testimony under Rule 702.
Getchell also argues that the trial court abused its discretion by admitting Trooper Leichliter's testimony as an expe
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